2022 (9) TMI 1504 - HC - Indian Laws

Refund of excess stamp duty and registration charges - Rule 9(6) of the Security Interest (Enforcement) Rules 2002 - HELD THAT - If a direct question is to be posed as to whether a certificate of sale issued by a Court or a Revenue Officer if evidence of a sale conducted by public auction requires registration or not the answer has to be a firm no . This would be the natural inference from a reading of the provisions. The other question that may arise is who is a Civil or a Revenue Officer the term Civil or a Revenue Officer has not been defined either under the Stamp Act or under the Registration Act - It is pointed out that the bar that this question is no longer res integra. The earliest decision of the Hon ble Supreme Court on this issue could be found in SMT. SHANTI DEVI L. SINGH AND ANOTHER VERSUS TAX RECOVERY OFFICER AND OTHERS 1990 (4) TMI 53 - SUPREME COURT wherein the Hon ble Supreme Court pointed out the procedure for filing of a certificate of sale issued by a Tax Recovery Officer and the Court after considering the provisions of Section 89(4) held that a Tax Recovery Officer under the Income Tax Act would be a Revenue Officer and the certificate of sale issued by him is not compulsorily registrable. In B. ARVIND KUMAR VERSUS GOVERNMENT OF INDIA AND ORS. 2007 (5) TMI 657 - SUPREME COURT the scope of Section 17(2)(xii) of the Registration Act was considered and the Hon ble Supreme Court held that a sale certificate is merely an evidence of title and it does not convey title - The very same question arose before another Division Bench of this Court in THE INSPECTOR GENERAL OF REGISTRATION AND ORS. VERSUS KANAGALAKSHMI GANAGURU 2017 (8) TMI 1708 - MADRAS HIGH COURT . This court had held that the authorised officer appointed by the Bank under the provisions of the SARFAESI Act cannot be called a Civil or Revenue Court or Collector or Revenue Officer. In view of the pronouncement of the Hon ble Supreme Court in ESJAYPEE IMPEX PVT. LTD. VERSUS ASST. GENERAL MANAGER AND AUTHORIZED OFFICER CANARA BANK 2021 (1) TMI 1308 - SUPREME COURT the law as it stands today is that an Authorised Officer who conducts a sale under the provisions of the SARFAESI Act would be a Revenue Officer and the certificate issued by him in evidence of such sale would be a document which is not compulsorily registrable under Section 17(2)(xii) of the Registration Act. Amount of stamp duty and registration charges payable if such certificate is presented for registration - HELD THAT - Article 18 of the Stamp Act provides for Stamp Duty payable on a certificate of sale granted by a Civil or Revenue Court or Collector or other Revenue Officer. Clause (c) of Article 18 makes the duty payable for a conveyance would apply to a sale certificate also. Under Article 23 of the Stamp Act the Stamp Duty payable on a sale is 5% as per G.O. Ms. No. 46-CT and All Department dated 27.03.2012. The Writ Petition has to be necessarily allowed and the excess fee and the stamp duty collected will have to be refunded by the respondents. The Writ Petition stands allowed.

Summary

Issues Involved:
1. Refund of excess stamp duty and registration charges.
2. Classification of sale certificates issued under SARFAESI Act for stamp duty purposes.
3. Applicability of Section 17(2)(xii) and Section 89(4) of the Registration Act to sale certificates issued by an authorized officer of a bank.
4. Legal precedents and their applicability to the case.

Detailed Analysis:

1. Refund of Excess Stamp Duty and Registration Charges:
The petitioner sought a Writ of Mandamus for the refund of Rs. 19,72,620/- collected as excess stamp duty and registration charges. The petitioner argued that the sale certificates issued by the State Bank of India's authorized officer should attract a stamp duty of 5% under Article 18 of the Stamp Act, not 7% under Article 23. The petitioner also contended that registration charges should be 1%, not 4%, as per Article 1 of the table of fees prescribed by the State Government under Section 78 of the Registration Act.

2. Classification of Sale Certificates Issued Under SARFAESI Act:
The petitioner claimed that the sale certificates should be treated as certificates of sale granted by a Revenue Officer, falling under Article 18 of the Indian Stamp Act, and not as conveyances under Article 23. The respondents argued that sale certificates issued by an authorized officer under the SARFAESI Act should be treated as conveyances and thus attract higher stamp duty and registration charges.

3. Applicability of Section 17(2)(xii) and Section 89(4) of the Registration Act:
The petitioner argued that under Section 17(2)(xii) and Section 89(4) of the Registration Act, a sale certificate issued by an authorized officer of a bank should not require mandatory registration. The petitioner relied on the Supreme Court's judgment in Esjaypee Impex Pvt. Ltd. v. Assistant General Manager and Authorised Officer, Canara Bank, which held that an authorized officer under the SARFAESI Act is akin to a Revenue Officer, and the sale certificate issued by them does not require registration.

4. Legal Precedents and Their Applicability:
The respondents cited several judgments, including those of the Division Bench in The Inspector General of Registration v. Kanagalakshmi Ganaguru and the Full Bench in Dr. R. Thiagarajan v. Inspector General of Registration, which held that sale certificates issued by an authorized officer under the SARFAESI Act are conveyances and require registration. However, the petitioner countered this by citing the Supreme Court's judgment in Esjaypee Impex Pvt. Ltd., which overruled the earlier judgments and established that such sale certificates do not require registration.

Conclusion:
The court concluded that in light of the Supreme Court's judgment in Esjaypee Impex Pvt. Ltd., an authorized officer under the SARFAESI Act is considered a Revenue Officer, and the sale certificate issued by them is not compulsorily registrable under Section 17(2)(xii) of the Registration Act. The court also held that the stamp duty payable on such sale certificates should be 5% under Article 18, and the registration charges should be 1% as per Article 1 of the table of fees. Consequently, the court allowed the Writ Petition, directing the respondents to refund the excess stamp duty and registration charges collected from the petitioner, amounting to Rs. 19,72,620/-, with interest at 9% per annum from the date of filing of the Writ Petition till the date of payment.